Political Economy Lab Working Paper Series
PEL-WP-2
TWAIL & Global Public HealthAziza Ahmed and Jason Jackson1
I. Introduction
COVID-19 travels on societies’ fault lines. Inequality has proven to be a major driver of thepandemic and its outcomes. This has been true not only within countries, but also across them. It
is not an exaggeration to say that the Global North, especially the United States, has hoarded
vaccines and treatments, as well as the right to produce these pharmaceuticals through trade andintellectual property protection. The impact of this has been grave. Not only have countries been
unable to access vaccines, these legal barriers have enabled the virus to mutate in to new variants
that are ever-more transmissible, making the end of the epidemic seem further and further away.
The issue of vaccine access has been further complicated by the sheer capacity that is required ofcountries to effectively distribute and administer vaccines. The capacity to distribute vaccines has
been undermined by centuries of underinvestment in the public health sector stemming fromimperial control of colonized territories, to international agreements between lending institutions
and formerly colonized countries in the Global South including aid conditionalities embedded in
bi- and multi-lateral agreements that limit the fiscal capacity and policy space for national
governments to improve the health of their populations.
Until recently, scholars had not examined the dynamics around global public health issues –including deep inequalities in health outcomes within and across the Global North and South –through the critical lens of Third World Approaches to International Law (TWAIL). Yet a nascentbut growing literature demonstrates that TWAIL can be instructive for understanding how law
structures the global political and economic order to produce health inequalities both within andacross countries through maintaining power imbalances, despite liberal claims of the possibilities
of equalizing relationships between countries through international law.
II. Traditional Accounts of International Law and Global Public Health
Global public health law and international health law are subfields of international law. Global
health law emerged from international health law. It refers to “the legal frameworks” that“structure the contemporary governance architecture for global health”.2 While international healthlaw has long structured multilateral efforts to respond to the threat of cross-border spread of
1

Aziza Ahmed is Professor of Law at Boston University and co-director of the BU Program on Reproductive Justice(azahmed@bu.edu), Jason Jackson is Asst Professor of Political Economy, MIT and Director of the Political
Economy Lab (jbrj@mit.edu). This paper is a draft chapter to be included in the Handbook of Third World
Approaches to International Law. It was presented as “TWAIL and the Global Governance of Public Health: From
HIV/AIDS to COVID-19” at the SASE conference (Decolonizing Development mini-conference, July 2022 held at
the University of Amsterdam). This draft is dated May 24, 2022.
2
Lawrence Gostin and Benjamin Mason Meier, “Introducing Global Health Law”, The Journal of Law, Medicine
and Ethics, 47 (2019), 788-793.

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infectious diseases, advocates of global health law seek to move beyond the confines ofinternational law to bring a specific focus on justice. Scholars and practitioners in the field believethat evidence-based law and regulations play an important role in promoting health behaviors andoutcomes and enabling the provision of equitable health care systems and services.3 Like thebroader field of international law, most writing in global and international health law
acknowledges the power differentials in international law, yet still seeks to address them throughformalistic rule of law proposals that aim to remedy health inequality at the national rather thaninternational or global levels. Two examples demonstrate this.
First, in the context of law and development, health indicators are seen as a means to assess acountry’s progress towards quantifiable development goals, such as reducing maternal mortalityor the incidence of infectious diseases. Both the Millennium Development Goals (MDGs) andSustainable Development Goals (SDGs), for example, contain specific indicators on health, suchas the percentage of births assisted by skilled personnel or the number of people living with
HIV/AIDS who received antiretroviral treatment, as well as other indicators that would indirectly
impact health outcomes. Countries are said to “progress” along the path towards development as
particular indicators are met. Yet while the MDGs and SDGs acknowledge the role of foreign aid
in facilitating the improvement of indicators such as access to maternal health professionals or
HIV/AIDS drugs, they do not acknowledge how the international system structures the politicalnature of aid monies or how it creates and enforces legal rules such as intellectual property rightsthat in turn can negatively impact health outcomes in the Global South.
Second, human rights institutions frequently take on issues related to health injustice and global
health inequalities, which are then spoken of in the register of human rights violations underinternational law. Human rights reports frequently cite to the Universal Declaration on Human
Rights (UDHR), which states in Article 25 that “Everyone has the right to a standard of living
adequate for the health and well-being of himself and of his family, including food, clothing,
housing and medical care and necessary social services, and the right to security in the event of
unemployment, sickness, disability, widowhood, old age or other lack of livelihood in
circumstances beyond his control.”
Mainstream scholars of international law and human rights view the UDHR and its two companion
treaties, the International Covenant on Civil and Political Rights (ICCPR) and the International
Covenant on Social, Cultural and Economic Rights (ICSCER), as foundational treaties in realizing
a right to health. The ICSCER contains within it a right to health which has been further expanded
in General Comment 14 on the Right to Health. Over time, various human rights bodies haveweighed in on how states can further realize the right to health, though in doing so they often avoid
sensitive economic and political constraints on the realization of this right due to the delicate
balance between human rights organizations and states as participants in the human rights process.4
3

Ibid. For example, in moving beyond the traditional horizon of international health law, Gostin and Meier argue
that global health law includes focus on legal approaches to addressing the combination of new globalized healththreats (from dangerous products to communicable and non-communicable diseases) new global health actors (notleast multinational firms, global NGOs, and other non-state actors) and new instruments of “soft law” (including thearray of global policies, strategies and action plans that are deployed in the contemporary arena of global publichealth).
4
See for example Human Rights in Global Health: Rights-Based Governance for a Globalizing World (Benjamin
Mason Meier & Lawrence O. Gostin eds., New York: Oxford University Press 2018).

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Rather than addressing these structural features of the global system, international law scholars
address the global health failures of human rights and development institutions in the register ofinternational law itself. The most influential of these modes of critique is the Framework
Convention on Global Health (FGH). In its draft text, the document states that “The FCGH would
bring central concepts of domestic and international right to health obligations developed throughGeneral Comments of the Committee on Economic, Social and Cultural Rights and other nonbinding or non-internationally binding forums (e.g., national courts) into binding internationallaw.” The Framework Convention was conceived of by scholars in the Global North who sought
to create a binding document to aid countries in realizing the right to health. From the perspectiveof international law, the FCGH is comprehensive and thorough. It supports greater funding for
health and commits donor countries to aid. It builds on the commitments of governments to better
health outcomes in their respective countries. In the language of international law, it is a
progressive document and that could inspire fundamental change if ever adopted. Yet therein lies
the rub.
The limitations of this sort of internal critique of health inequality from international law,
especially the reliance on state participation, are evident in the absence of an acknowledgement of
the role of history, power and the legal structure of the global political economy in the FCGH.
This insight has been developed in recent TWAIL scholarship on international health law. As
Matiangai Sirfleaf notes in writing about pandemics, global health law “is an incomplete regime
for conceptualizing and allocating global responsibility for combating epidemics” because theabsence of consideration towards “structural conditions in the international system that give rise
to states needing to develop core capacities” [to address/respond to disease]. (2018: 293; 295).5
III. A TWAIL Approach to Global Health
The TWAIL critique of the law of international health allows for a deeper and more sustained
understanding of the role of international law in reinforcing, rather than alleviating, healthinequalities. It does so by providing the possibility of seeing how, as TWAIL scholars assert,
international law “reproduces and sustains the plunder and subordination of the Third World by
the West.”6 The ideas that animate what is now called TWAIL are rooted in anticolonial struggles
that sought to decenter western ideologies that animated international law and the global orderingthat it created. 7 TWAIL scholars position themselves against the idea that international law is aset of neutral rules emerging from treaties and international agreements that are the product ofstates negotiating the terms of the international legal system as equals.
.

5

Regarding the inadequacies of human rights laws, she writes that the “neglect of the importance of the economic
and social sector in international law has rendered already vulnerable countries in the Global South ill-equipped todeal with public health crises posed by epidemics”.
6
https://digitalcommons.law.buffalo.edu/cgi/viewcontent.cgi?article=1559&=&context=journal_articles&=&seiredir=1&referer=https%253A%252F%252Fscholar.google.com%252Fscholar%253Fq%253Dtwail%252Band%252
Bglobal%252Bhealth%2526hl%253Den%2526as_sdt%253D0%2526as_vis%253D1%2526oi%253Dscholart#searc
h=%22twail%20global%20health%22. Also see Vasuki Nesiah on the tie in between colonization and capitalism https://www.cambridge.org/core/journals/american-journal-of-international-law/article/decolonial-cil-twailfeminism-and-an-insurgent-jurisprudence/AA2D357CF7DD62BFA10E4B8A0B734C90
7Over time, TWAIL scholars also began to acknowledge that it was important to disrupt the essentialist ideas of thethird world and the first world and think beyond sovereign borders. See especially the work of Tony Anghie.

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Instead, inequalities in health outcomes between countries exemplify how the structural inequities
generated by international law have effects on the lives of individuals. The COVID pandemic
illustrates this clearly. While the United States floundered under the Trump administration, theunderwriting of vaccine development through Operation Warp Speed, made possible by thefinancial and technological capacity of the United States, allowed the country to take the lead in
the global development of an effective COVID-19 vaccine, thus placing the country on what
initially promised to be a transitional phase out of the pandemic. This is while the vast majorityof the world remained unvaccinated.
Leveraging the critique of international law as a instrument of colonial and neo-imperial power,
TWAIL advocates for the use of historical methodologies to explore the shifting nature ofinternational law’s imperialist tendencies. Drawing on the historical literature on colonialism andpublic health on one hand, and structural adjustment and public health on the other, the sections
below offers a broader political economic understanding of the current state of health care delivery
as determined by structural adjustment programs that in turn are enabled by international law andthe post-war structure of global political and economic power.
IV. The Past and Present of Structural Adjustment
Structural adjustment programs emerged in the late 1970s. They have since become centerpiecesof the external governance of the economies of ostensibly sovereign developing countries by a few
countries in the Global North acting through the International Monetary Fund (IMF) and the World
Bank. The term structural adjustment refers to a “referred to a set of lending practices whereby
governments would receive loans if they agreed to implement specific economic reforms” (Babb,
2005:200). These loans are made conditional on countries’ progress in enacting the required
reforms, which are deemed by international organizations the IMF and the World Bank to benecessary for countries to achieve steady economic growth and development. If governments failto pursue the required policies and meet specific targets laid out in the contractual agreements,
then loan disbursements can be halted. Structural adjustment programs thus embody the coercive
power of the Washington-based international organizations that are enabled by international
economic law.
This approach to dictating development policy to the governments of sovereign states stood in
sharp contrast to the relative freedom or ‘policy space’ that recently independent countries wereafforded in the period immediately following the conclusion of World War II (Chang, 2002).
Global economic governance in the 1950s and 1960s was largely informed by Keynesian ideas of
economic management coupled with modernization theories of development. The former affordeda direct role for government in ensuring economic growth and social welfare through fiscal policy
and sectoral and industrial planning, while the latter provided the logic of modernization theory
which held that, despite often vast heterogeneity in their socio-economic starting points, allcountries would follow a similar path to social development, political stability and economic
prosperity.
This was generally a period of strong global economic growth, despite the many armed conflicts
in the Global South that characterized the misleadingly-named Cold War. Yet the ‘Golden Age of4

Capitalism’ all came to screeching halt with the twin oil shocks of the 1973 and 1979. The result
was a 6-fold increase in the cost of petroleum over the course of the decade, that led to an
unprecedented combination of inflation and economic stagnation. Further, Keynesian economic
policies that had become the orthodoxy in the Global North were deemed to be inadequate for the
economic challenges of the 1970s in countries like the United States. Keynesianism thus lost muchof the legitimacy it had enjoyed since its role in rescuing the world economy from the Great
Depression.
The economic disruptions of the 1970s were then worsened by the actions of the United States
Federal Reserve, which in 1979 instituted a massive increase in interest rates (the so-called“Volcker Shock”) that aimed to halt persistently spiraling inflation. This led to massive debt crises
across the Global South, particularly in African, Caribbean and Latin American countries, as thecost of debt servicing skyrocketed. More generally, fiscal conservativism, monetarism and theemerging ideology of neoliberalism became the new orthodoxy in countries like the US and theUK, and would herald the beginning a radically different economic policy approach todevelopment in the Global South.
Up to this point the World Bank, and to a lesser extent the IMF, had played relatively benign roles
in supporting the development policies and aspirations of third world countries while allowing
them to pursue their preferred economic policies, albeit with important exceptions in the late 1960s(e.g. India) and the early 1970s (e.g. Jamaica). This situation changed dramatically following thetwin oil shocks. The combination of declining economic growth from structural dislocations in the
global economy coupled with suddenly escalating needs for fiscal support following the sudden
increase in global interest rates created an immediate role for the IMF and the World Bank, placingthese two Washington-based international organizations and the ‘structural adjustment’ programs
that they instituted at the center of international development (and global controversy) for the next
three decades.
The term structural adjustment was coined in the late 1970s by then World Bank President Robert
McNamara and came to represent a wide suite of economic policies (Babb, 2005). These had anumber of a key characteristics.
First, they could be broadly categorized as either macro-level economic stabilization policies,
usually led by the IMF, and macro- and meso-level economic and increasingly institutional
reforms, generally led by the World Bank, often in concert with regional development banks (suchas the African Development Bank, Caribbean Development Bank and the Inter-American
Development Bank) and bilateral donor agencies (such as USAID, CIDA, DfID, GTZ and the EC),
amongst others.
Second, these programs were informed by a distinctly neoliberal logic of state-market relations.
Structural adjustment programs were predicted on the assumption that countries fell in to crisis
due to excessive government control of the national economy and failures to follow market
signals.8 The programs thus provided emergency financial support but with typically strict
conditionalities that sought a radical revamping of the structure of national economies in line with
8

The literature here is vast, but for orthodox perspectives that informed the IMF and World Bank approach see forexample Krueger (1974, 1983, 1990) and Bhagwati (1982, 1986).

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market-based principles. ‘Get the prices right’ was the economic policy mantra of the 1980s. In
this respect, neoliberal structural adjustment programs represented a complete U-turn from
Keynesian economic management that had been ubiquitous in developing and industrializedcountries from the end of the Second World War through the mid-1970s.
As noted earlier, structural adjustment programs had two principal components that reflect adivision of labor between the IMF and the World Bank. Stabilization policies aimed to address
immediate balance-of-payments crises that arose when the outflow of foreign exchange greatly
exceeded inflows, such that countries faced the risk of losing the ability to purchase essential
imports such as fuel, food and productive inputs to the domestic agricultural and manufacturingsectors. Emergency loans from the IMF were designed to shore up national finances, but attachedconditionalities such as sharp fiscal spending cuts and currency devaluation to allow domestic
currency valuations to move towards ‘market’ rates.
While the IMF was responsible for short-term macroeconomic stabilization, World Bank
interventions ranged from macro-level structural reforms that ranged from economic liberalization(e.g. trade and investment) to various legal reforms, particularly from the 1990s onwards (e.g.
focusing on property rights and contract regimes and ‘strengthening’ the ‘rule of ‘law’), mesolevel sectoral reforms, from fiscal spending cuts to privatization and increasingly, micro-levelinterventions through social welfare programs that aimed to directly target individuals, sometimes
entirely bypassing governmental structures that ironically had been weakened by structuraladjustment programs themselves.
The Impact of Structural Adjustment Programs on Global Health Outcomes
Considering structural adjustment programs as part of the history and context in whichinternational and transnational law on global health occurs is key to understanding differences inhealth outcomes across countries. On nearly every metric, countries in the Global South perform
poorly relative to those in the Global North. This pervasive inequality is exemplified by the factthat some illnesses and diseases, such as polio, have been completely eradicated in industrializedcountries yet remain present in the developing world.
Kentikelenis (2017) offers a valuable conceptual framework for understanding the relationshipbetween the structure of the international economic order and global health. It identifies threepathways through which structural adjustment programs can shape public health outcomes: (1)policies that directly target health systems; (2) policies that indirectly impact health systems; and(3) policies that affect the range of other socio-economic factors that public health scholars
collectively refer to as social determinants of health. Each of these mechanisms is further
elaborated below, while discussion of their underpinnings in international law follows after.
One of the principal ways that structural adjustment programs directly affect health outcomes isthrough impacts on levels of health care financing. As noted above, economic stabilization
measures typically entail fiscal spending reductions, which can have a direct impact on the leveland quality of health services provision. This occurs through reductions in wages or staffing in thehealth sector, or through a shift away from public health services provision towards individual user
fees. More generally, structural adjustment programs often require decentralization of health6

services governance by national level government authorities, which can weaken the capacity fornational-level coordination and thus introduce an array of inefficiencies. Decentralization is often
coupled with a rise in private sector provision of health services as the state-owned health sector
shrinks, whether due to reduced levels of health sector finance or outright privatization of areas ofthe public health system, all of which can impede access as the poor may face higher healthcare
costs.
Secondly, structural adjustment programs can indirectly affect health outcomes through a numberof macroeconomic mechanisms. For example, currency deregulation as part of stabilization efforts
can increase the prices of imports, including essential medical equipment and drugs. Relatedly,
trade and capital account liberalization can reduce government tax receipts, with knock-on effects
on the level of fiscal resources that are available for health-related spending. Important indirect
health effects can also arise from privatization of state-owned enterprises, which has been a majorpart of structural adjustment programs over the past four decades. While privatizations can lead toshort term fiscal gains, they can also entail medium-long term revenue losses depending on thefiscal outlook of the state-owned entities in question. Privatization also tends to result in workforce
reductions under private (many times foreign) management, and thus loss of income and healthbenefits for former SOE employees.
Third, structural adjustment programs can have major effects on health outcomes through social
determinants of health. In this instance, structural adjustment programs, and the havoc they
wreaked on public health infrastructure can themselves be considered a social determinant ofhealth. Social determinants of health is an approach that challenges the view that health outcomesare products of individual level factors and behaviors, including biological factors like genetics.9
Instead, the focus is on identifying the socio-economic and legal mechanisms through which
health outcomes are shaped by social risks and conditions that individuals, households, andcommunities face at home, school, and work. 1011 This insight can be dated back to the earlytwentieth-century work of W.E.B. DuBois, who identified the relationship between poverty,
racism, and health inequities, arguing that “[t]he Negro death rate and sickness are largely mattersof [social and economic] condition[s] and not due to racial traits and tendencies.”12
Once the underpinnings of the social determinants of health have been elaborated, the pathways
through which these are affected by structural adjustment programs become clear: rising
unemployment coupled with a tattered social safety net leads to deepening poverty, with attendantnegative health outcomes. These are exacerbated by increased health costs from the direct effects
9

The social determinants of health approach also aligns with critical literatures challenging the purported
relationship between race and health as being an outcome of fundamental genetic differences between individuals
and further forming the basis of racial categories and thus predictors of health outcomes, as opposed to the role ofsocial structures, ideas that have their roots in colonial science.
10.For an overview of the theoretical and empirical foundations of the social-determinants-of-health approach, see
Nancy Krieger, Epidemiology and the People’s Health: Theory and Context 163--201 (2011).
11
See, e.g., Paula Braveman & Laura Gottlieb, The Social Determinants of Health: It’s Time to Consider the Causesof the Causes, Pub. Health Reps., Jan.–Feb. 2014, at 19, 20–22 (“A large and compelling body of evidence has
accumulated, particularly during the last two decades, that reveals a powerful role for social factors—apart frommedical care— in shaping health across a wide range of health indicators, settings, and populations.”).
12
Gilbert C. Gee & Chandra L. Ford, Structural Racism and Health Inequities: Old Issues, New Directions, 8 Du
Bois Rev. 115, 116 (2011) (second alteration in original) (quoting W.E. Burghardt DuBois, The Health andPhysique of the Negro American, 93 Am. J. Pub. Health 272, 276 (2003)).

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of structural adjustment programs discussed above. Further, rising food costs and concomitant
shifts in the composition of the food basket stemming from trade liberalization (which can lead toincreased imports of lower quality foodstuff including processed foods, dumped meats, etc.) havenegative nutritional effects, particular on children. Countries also become more vulnerable toglobal food price shifts as the proportion of imported products in food basket increases.
These negative impacts on social determinants of health are felt through other channels as well,such as reduced access to housing arising from cuts to public sector financing as well as
institutional and legal reforms that reduce tenant security. Similarly, environmental effects such as
poor air and water quality often arising from ‘pro-market’ approaches to environmental
governance, from human displacement, to water table depletion and increased use of chemicals as
part of agricultural sector reforms. And finally, all these can be exacerbated by weakened social
bonds at the community level and mental health impacts of economic disruptions at the individuallevel.
Though critical scholars have long argued for recognition of the structural bases of inequitable
health outcomes,13 the social determinants of health approach only began to be integrated in to
mainstream policy and institutional responses to health inequalities in the 1980s, and much of thisinitial was in the United States.14 It wasn’t until the 2000s that the social determinants of healthapproach began to enter global public health discourse and practice. The World HealthOrganization (WHO) formed the Commission on the Social Determinants of Health with the goalof “tackling the social causes of poor health”15 in the “spirit of social justice.”16 The Commission
focused on global health inequalities between developing and industrialized countries, identifying
a range of structural factors that impact individual health outcomes from the economic aid
provided in bilateral assistance [structural adjustment programs?] to intrahousehold dynamics thatleave some family members unable to address health issues.17 The conclusion of the report offered
the grim summary that “social injustice is killing people on a grand scale.”18

13 For a longer history dating back to the 19th century see Raphael D. Social determinants of health: present status,
unanswered questions, and future directions. Int J Health Serv. 2006;36(4):651-77. doi: 10.2190/3MW4-1EK3DGRQ-2CRF. PMID: 17175840. (tracing the phrase “social determinants” to the 1996 publication Tarlov, A. Social
determinants of health: The sociobiological translation. In Health and Social Organization: Towards a Health Policy
for the 21st Century, ed. D. Blane
et al. Routledge, London, 1996. WEB Dubois also write about addressing social concerns to better health of theBlack community. https://ajph.aphapublications.org/doi/pdf/10.2105/AJPH.93.2.272
14.For a history on the rise of focus on the social determinants of health, see generally Paula Braveman, Susan
Egerter & David R. Williams, The Social Determinants of Health: Coming of Age, 32 Ann. Rev. Pub. Health 381,
382 (2011).
15.Commission on Social Determinants of Health---What, Why and How?, WHO,
https://www.who.int/social_determinants/thecommission/finalreport/about_csdh/en [https://perma.cc/EW8S-XN69](last visited Jan. 25, 2021).
16. Comm’n Soc. Determinants Health, Closing the Gap in a Generation: Health Equity Through Action on theSocial Determinants of Health---Final Report of the Commission on Social Determinants of Health (2008)[hereinafter, Closing the Gap].
17.Closing the gap, supra note12.
18. Id. at 36.

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These social conditions thus encompass a range of economic and environmental factors that shapeinequitable health outcomes within and across countries, including education, employment,
income and social protection, housing and physical insecurity, access to health services, andgender, racial, ethnic and caste discrimination and social exclusion.19 Crucially from a critical legal
perspective, structural causes of health inequities are not only socioeconomic and environmental.
The legal system also produces the background conditions that generate health disparities and poor
health outcomes among vulnerable populations, many of which are exemplified in post-colonial
contexts. A TWAIL perspective allows us to shed light on the ways in which legal rules at thedomestic and international levels shape all of the aforementioned social determinants of health,from employment relations and working conditions to access to decent housing and clean water.
International law facilitates these outcomes by enabling some actors, such as international
development organizations and multinational corporations, to exert significant power over others,
such as governmental bodies, workers and consumers in the Global South.
V. The International Law and the Colonial Management of Infectious Disease
While it is not possible to offer a complete history of the role of law in the international
management of infectious disease, a few examples paint a picture of the management of disease
as a way to forward economic dominance and colonial enterprise through international law.
Taking a TWAIL perspective this long history destabilizes international law as a source ofresistance and puts it in critical perspective as a tool of domination and subjugation.
The Contagious Diseases Acts provides an example of how public health was an essential elementof colonial governance. In the 19th century, concern over contagious diseases in the colonies tookhold among the British. In response, the British government passed the Contagious Diseases Acts
(CDAs) in 1864, 1866, and 1869.20 Largely concerned with sexually transmitted infections among
the armed forces, the acts sought to regulate prostitution in England in the colonies. CDAs gave
broad authority to regulate prostitution in England21 and in the colonies for the purpose ofcontrolling the spread of venereal disease.22 The CDAs mandated check-ups for women ordered
to periodic examinations by a judge.23 Prostitutes were specifically targeted by the CDAs.24
Those who were found to have a venereal disease were detained at the hospital and treated.25
19. See id. at 166.
20
Id. at 14 n.1.
21
The acts applied to “military stations, garrison and seaport towns.” Margaret Hamilton, Opposition to theContagious Diseases Acts, 1864-1888, 10(1) Albion: A QUARTERLY JOURNAL CONCERNED WITH BRITISH STUDIES
14-27, 14 (1978)
22
The driving rationales behind the acts shifted over time and are difficult to isolate. As argued by Judith Walkowitz,
the acts may have been driven by concerns over sexuality in the Victorian period as well as venereal disease. JUDITH
WALKOWITZ, PROSTITUTION AND VICTORIAN SOCIETY: WOMEN, CLASS, AND THE STATE 70 (1980). However, the acts
themselves were pushed forward by the impact of venereal disease on the army. See id. at 71–75.
23
The Contagious Diseases Prevention Act 1864, 27 & 28 Vict. c. 84 & 85, §§ 12–14 (U.K.).
24
The Contagious Diseases Acts, 1866/1869 Section 15-16. The 1866 Act states (“Where an information on oath islaid before a justice by a superintendent of police, charging to the effect that the informant has good cause to believethat a woman therein named is a common prostitute…The justice present, on oath being made before him
substantiating the matter of the information to his satisfaction, may, if he thinks fit, order that the woman be subject
to periodical medical examinations…for the purpose of ascertaining at the time of each such examination whether she
is affected with a contagious disease.”)25
The Contagious Diseases Prevention Act 1864, 27 & 28 Vict. c. 84 & 85, §§ 12–14 (U.K.).

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Alongside the spread of disease, the CDAs were understood to embody Victorian morality, inparticular the impetus towards the regulation of women’s bodies for the purposes of the state.
During this period of colonial rule, the goal of infectious disease management was largely toprotect European colonizers from contracting diseases from “native” colonial subjects. In the caseof the CDAs, advocates of the acts often cited the health of British troops as a key rationale for thelaws.26 It was through public health that colonizers governed territories and populations. These
efforts are clear from the mid 19th century onwards as international agreements between empires
were forged in settings like the International Sanitary Conferences, first convened in Paris in 1851
with subsequent meetings in a range of metropolitan centers including Constantinople (1866),
Vienna (1874), Washington, DC (1881), Rome (1885), Venice (1892), Dresden (1893), Paris(1894), Venice (1897) and again Paris (1903). The latter meetings are particularly monumental in
the history of international health law as they resulted in the first globally binding agreements on
the response to global disease spread (Venice 1897) and ultimately saw the drafting and ratificationof the first International Sanitary Regulations (Paris 1903).27 These agreements were enabled byparticipants’ shared imagination of African and Asian territories as disease-ridden coupled with
their common objective of restricting the spread of diseases like the bubonic plague through troop
and other personnel movements as well as goods trade between the colonies and Europe. Political,
economic and military factors have thus long formed the core logic of colonial public healthgovernance.
More than one hundred years later, as colonization has formally ended in most parts of the world,
new forms of global health management have emerged, albeit often through neocolonial
development structures. Contemporary global hegemons and international organizations charged
with global health management have replaced former imperial powers in maintaining power
imbalances that underpin persistent global health inequality between the Global North and Global
South. Legal and institutional continuity is evident in the contemporary architecture of global
health governance. The International Sanitary Regulations of the late 19th century led to theInternational Health Regulations in the early 20th century, which in turn set the stage for a newmode of international health law that would be institutionalized with the creation of the World
Health Organization (WHO) in the wake of World War II. The WHO, with the support of other
UN bodies, was empowered with the constitutional authority to challenge national sovereignty incarrying out its mandate to respond to global public health threats. These powers included thedesign of regulatory norms, and harmonized surveillance and reporting systems for infectious
disease control.28 Yet despite holding the legal authority to supersede individual rights when
deemed necessary, the WHO has rarely deployed its formal powers. Instead, the WHO faces manyof the challenges of other international organizations that ultimately are products of a state-based
system. Such are the limitations of international law, as TWAIL scholars have argued. The noble
objective of multilateral coordination towards ensuring the global public good gives way to thereality of structure of the global political economy, with powerful states and increasingly, nonstate actors, ultimately shaping the governance of global health.
26

As argued by Walkowitz, statistics produced about venereal disease amongst soldiers played a large role in justifying
the CDAs. See Walkowitz, supra note 24, at 75.
27
Gostin and Meier, 2020; Alexandre White, Global Risks, Divergent Pandemics: Contrasting Responses to
Bubonic Plague and Smallpox in 1901 Cape Town, Social Science History 42, Spring 2018, pp. 135–158.
28
Gostin and Meier, 2020:790.

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HIV/AIDS provides a valuable example. In 1990s and early 2000s, as AIDS began to ravage the
Global South and in particular parts of Sub-Saharan Africa, the United States became the largest
funder of the HIV/AIDS health response. Through the Leadership Against Global HIV/AIDS,
Tuberculosis and Malaria Act of 2003, also known as the President’s Emergency Plan for AIDS
Relief (PEPFAR), the US government channeled funding and other resources to countries in needof aid. The dedicated funds, however, entrenched the role of American multinationals frompharmaceutical companies to condom manufacturers as primary beneficiaries of the law. PEFPAR
made it mandatory that countries had to purchase supplies from US firms. The law also madeAmerican cultural and religious values an imperative. A product of the conservative George W.
Bush administration, PEPFAR included increased funding for faith-based organizations and thepromotion of abstinence-based sexual health education.29 Though some resources were dedicatedto strengthening health systems, PEPFAR funding did not prioritize deep structural issues of weak
health infrastructure in recipient countries; instead, it became known for establishing parallel
health programs to delivery AIDS care while ignoring broader health concerns.30 Healthcare
systems in many countries ultimately became reliant on international NGOs such as the Bill andMelinda Gates Foundation, which would become the primary sources of healthcare financedelivery of healthcare products and services.
The global intellectual rights regime was also a major source of contention between the Global
South and the Global North in the HIV/AIDS crisis. The agreement on Trade-Related Aspects ofIntellectual Property Rights (TRIPS) under the World Trade Organization (WTO) provides aframework for the protection of intellectual property, most notably in the case of health, of patents
on drugs. The TRIPS regime allows owners of pharmaceutical patents to monopolize theproduction and sale of drugs, while the broader trade regime sanctions differential pricing acrosscountries. This structure of global governance enabled pharmaceutical companies in the US,
Europe and Japan to charge higher prices for drugs in poor countries while the WTO enforced
restrictions on the production of generic versions of branded drugs that would cost significantly
less. While the TRIPS regime does allow for “compulsory licensing” of drugs in the case ofdomestic health emergencies, the financial and technical barriers to producing drugs severely
limits the effectiveness of this measure embedded in the treaty agreement, as does the politicalcosts of challenging the global hegemons. At best it has allowed for a few countries in thedeveloping world with pharmaceutical producers with the requisite capabilities and governmentswith the political capital, such as in Brazil, India and South Africa, to produce lower costalternatives. It has hardly proven to be a solution to the broader issue of structural inequalities andglobal governance inadequacies.
Today a similar dynamic is at play with the COVID-19 pandemic. The US government has once
again dedicated billions to health aid,31 making it the largest donor of COVID-19 relief amongst
OECD countries. As healthcare systems in the Global South faltered the US government dedicatedfunds through the COVID-19 Response and Recovery Act. Once again, however, the law did not
address the need to bolster or restructure flailing health sector infrastructures in recipient countries.
29

On the politics of HIV/AIDS, see Ahmed (forthcoming).
See research on vertical vs horizontal funding, for example https://pubmed.ncbi.nlm.nih.gov/24197405/
31
https://www.oecd.org/newsroom/covid-19-spending-helped-to-lift-foreign-aid-to-an-all-time-high-in-2020-butmore-effort-needed.htm
30

11Instead, as vaccines took center stage in the global COVID-19 response, resources have been
focused on vaccine access and distribution. Yet this aid has been conditional on countries
purchasing vaccines from producers in the Global North at high cost and restricts recipient
countries from producing generic versions of the vaccines domestically, despite the extreme publichealth crises they face. These conditional restrictions are again reinforced by the TRIPS
intellectual property rights regime, illustrating how developing countries are constrained by the
combination of global political economic structures and the strictures of international law. Further,international efforts to address this issue through donor coordination and public-private
partnerships have floundered, as the disappointing collaboration between the international publicprivate organization Gavi, the Vaccine Alliance, and the WHO which created the COVID-19
Vaccine Global Access (COVAX) Facility has shown.32 Finally, even where countries havemanaged to acquire vaccines, distribution has been a major challenge given the weakening ofhealth systems infrastructure following decades of funding constraints under structural adjustment
and neoliberalism, as discussed earlier.33
VI. Conclusion: TWAIL and Global Health Law
In the early stages of the COVID-19 pandemic, one might have hoped that with the international
scientific cooperation that resulted in the breakthrough of sequencing the virus in January 2020,
coupled with the promise of mRNA technologies that had been waiting in the wings for two
decades, vaccine development would be swift and the world would soon be inoculated. That would
be a reasonable prediction in the context of an airborne virus that crosses international borders
easily making crystal clear that humans exist in a global community. Instead, the world has
observed a deep resistance to ensuring equitable access to vaccines, therapeutics and other formsof health care services and equipment (from personal protective equipment to ventilators) that
could alleviate suffering around the world. The answer at least partly lies in the deeply
institutionalized structure of management and control of the Global South by the Global Norththrough public health. The TWAIL approach allows us to unpack these dynamics of struggle anddomination, as well as the legacies of colonization, that coproduce vast inequalities in global healthoutcomes.34 35

32

For an excellent critical geography analysis of the role of private financial sector players in shaping, and profiting
from, the COVAX facility to the detriment of actual vaccine delivery to countries in need, see Sarah HughesMcLure and Emma Mawdsley, “Innovative Finance for Development? Vaccine Bonds and the Hidden Costs ofFinancialization”, Economic Geography, 2022.
33
https://www.nature.com/articles/s41541-021-00323-6
34https://www.jstor.org/stable/25659346?seq=1
35
See for example David Kennedy, 2016, A World of Struggle (Princeton University Press).

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